Labor & Employment Law Daily Flight attendant must arbitrate claim that employer’s vaccination requirement violated her religious beliefs
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Monday, August 24, 2020

Flight attendant must arbitrate claim that employer’s vaccination requirement violated her religious beliefs

By Ronald Miller, J.D.

Pfizer’s agreement and its related communications clearly informed the employee that by continuing to be employed for 60 days, she would waive her right to pursue employment discrimination claims against the employer in court.

A trial court properly granted an employer’s motion to compel a flight attendant, who was a practicing Buddhist and vegan, to arbitrate her claim of religious discrimination after she was discharged for refusing to take a vaccination for yellow fever, ruled the New Jersey Supreme Court. The state high court agreed with the employer that the employee assented to arbitrate her NJLAD claims after she continued her employment with the company for more than 60 days after it implemented a new arbitration policy. Moreover, the employer’s decision to communicate the agreement and related materials to the employees via email did not warrant invalidation of the agreement. Justice Albin filed a separate concurring opinion, and Chief Justice Rabner filed a separate dissenting opinion (Skuse v. Pfizer, Inc., August 18, 2020, Patterson, A.).

Arbitration policy. In 2016, the employee was notified by her employer of a new arbitration policy that would become a condition of her employment. Under that policy, if an employee continued to work for the company for 60 days after receiving a copy of an arbitration agreement, that employee would be deemed to have assented to the agreement, and to have waived the right to litigate employment-related claims.

The employee worked as a flight attendant in the employer’s corporate aviation operations. She was an active employee on the dates that the employer sent out emails announcing its arbitration agreement, and records indicated that she received the emails. The employee also completed a “training module” regarding the arbitration policy, and clicked the box on her computer that asked her to “acknowledge” her assent to the agreement as a condition of her continued employment after 60 days. She continued to work for the employer for another 13 months.

Dispute over vaccine. A dispute arose between the employee and employer regarding an employer policy that required flight attendants to be vaccinated for yellow fever. The employee, a practicing Buddhist who adhered to a vegan diet, refused the yellow fever vaccine on the ground that it contained animal products.

According to the employee, in April 2017, her managers gave her an ultimatum to receive the vaccine within 30 days “or be terminated.” They allegedly ignored her requests for exemptions from the vaccination requirement on religious or medical grounds, causing her to suffer a breakdown. She alleged that she was granted medical leave but was not permitted to return to work at the conclusion of her leave, and that the employer refused to accommodate her request to be exempted from the vaccination requirement. Her employment was terminated on August 11, 2017.

The employee filed suit against the employer and two individual managers alleging that they violated the New Jersey Law Against Discrimination by terminating her employment because of her religious objection to being vaccinated.

Arbitration demand. Invoking the FAA and the New Jersey Arbitration Act (NJAA), the employer and the individual defendants moved to dismiss the complaint and to compel arbitration. The trial court granted the motion and directed her to proceed to arbitration in accordance to the agreement.

On appeal, the Appellate Division reversed, concluding that the arbitration agreement was unenforceable because “the wording and method of Pfizer’s training module” was “inadequate to substantiate an employee’s knowing and unmistakable assent to arbitrate and waive his or her rights of access to the courts.”

Before the New Jersey Supreme Court, the employer and the individual defendants argued that the trial court properly enforced a valid and binding arbitration agreement between it and its employee. For her part, the employee argued that the employer did not ask her to “agree” to the agreement, but only to acknowledge that she received it. Further, she argued that her continued employment was not adequate enough to express her individual assent to the agreement.

Waiver of rights. After examining the terms of the agreement itself, and the language appearing in the employer’s explanatory materials, the high court concluded that it satisfied New Jersey’s state standard governing contractual waiver of rights.

An arbitration agreement must be the result of the parties’ mutual assent, according to customary principles of state contract law. For any waiver-of-rights provision to be effective, the party who gives up rights must “have full knowledge of his legal rights and intent to surrender those rights.” New Jersey case law requires that a waiver-of-rights provision be written clearly and unambiguously. In an employment setting, employees must “at least know that they have ‘agree[d] to arbitrate all statutory claims arising out of the employment relationship or its termination.’”

Conduct as assent. Applying those principles, the New Jersey Supreme Court concluded that the employer’s agreement and its related communications clearly informed the employee that by continuing to be employed for 60 days, she would waive her right to pursue employment discrimination claims against the employer in court. New Jersey contract law recognizes that in certain circumstances, conduct can constitute contractual assent.

Here, the employer unambiguously explained that an employee’s continued employment after the arbitration policy’s effective date would be deemed to constitute his or her assent to the arbitration policy. Further, the agreement stated, in bold font, that the employee’s acknowledgement of the agreement was not required for it to be enforced, and that the employee would be “deemed to have consented to, ratified and accepted this Agreement” by accepting or continuing employment with Pfizer after the effective date.

Moreover, the employer clearly explained to the employee the rights that she would relinquish if she remained employed after the policy’s effective date and thereby assented to the agreement’s terms. The Agreement provided that the claims affected would be resolved by arbitration, not “by a court or jury.” Finally, the employee’s NJLAD claim was indisputably included in the agreement’s broad language describing the employment-related claims subject to arbitration.

Delivery method. Additionally, the state high court rejected the Appellate Division’s ruling that the agreement was unenforceable because the employer chose “an inadequate way for an employer to go about extracting its employees’ agreement” to arbitrate.

First, the high court observed that any contention by the employee that she completed the training module without reading its contents or the documents linked to it would have no impact on the analysis of whether it was enforceable. Moreover, no principle of New Jersey contract law bars enforcement of a contract because that contract is communicated by email, rather than by a hard-copy document. Accordingly, the employer’s decision to communicate the agreement and related materials to the employees via email did not warrant invalidation of the agreement.

Thus, the state high court agreed with the employer that the employee assented to the arbitration of her NJLAD claims.

Concurrence. Despite his reservations with the online waiver-of-rights procedure used by the employer, Justice Albin was persuaded by the totality of the evidence that the employee clearly and unmistakably understood that she was agreeing to submit any disputed employment issue to an arbitrator rather than a court.

Dissent. In a dissenting opinion, Chief Justice Rabner agreed with the Appellate Division that the online “training module” used by the employer lacked clear and unmistakable proof that the employees agreed to waive their right to have their day in court. The dissent noted that a valid waiver requires (1) a provision that plainly alerts the parties they are giving up a right, and (2) clear and unmistakable proof that both parties agreed to the provision. While the documents the employer provided to its employees plainly called for arbitration of employment-related disputes, the dissent argued that neither the “acknowledgement” of the company policy, nor a one-sided declaration that consent would be deemed by default, met that standard.

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